Kvame v. Farmers Co-Operative Elevator Co.

A rehearing was granted to determine the effect of § 7168 of the Compiled Laws, which permits the injured party, at his option, to recover "the highest market value of the property at any time between the conversion and the verdict without interest," when the action has been prosecuted with reasonable diligence.

The date of the conversion is established as July 14, 1933. The action was prosecuted with reasonable diligence. At the close of the case in December 1933 both sides moved for a directed verdict and the court, Judge Buttz presiding, dismissed the jury, making findings of fact and conclusions of law in the main favorable to the plaintiff. Judgment was entered accordingly and the defendant appealed. Upon the appeal the judgment was reversed "and a new trial . . . ordered on all the issues, except the issue on defendant's counterclaim."

On the retrial the case was submitted to the court without a jury, Judge Grimson presiding, and the highest market value of the grain between the time of conversion, the 14th day of July 1933, and the date of this trial is shown beyond dispute, as set forth in the opinion herein.

On this appeal we hold plaintiff is entitled to recover the highest market value of the grain from the date of conversion, to-wit, July 14, 1933; but the question is raised as to whether the highest market value recoverable by the plaintiff is the highest market value between July 14, 1933 and the date of the trial before Judge Buttz, or the highest market value between the date of conversion, July 14, 1933, and the date of the trial before Judge Grimson.

Originally the measure of damages for conversion was ordinarily the value of the property at the time of conversion; but the palpable injustice in cases of property of fluctuating value induced the rule that if the case be prosecuted with reasonable diligence, the owner could recover the highest market value of such property between the time of conversion and the time of trial. See Howton v. Mathias, 197 Ala. 457, 73 So. 92; Sappington v. Rimes, 21 Ga. App. 810, 95 S.E. 316; Early-Foster Co. v. Mid-Tex Oil Mills (Tex. Civ. App.) 208 S.W. 224.

This rule permitting the recovery of the highest market value up to the time of trial became crystallized into statutes, with varying phraseology, but with the same general import. See Comp. Laws, § 7168.

The term "trial" means the trial which is the final determination of the case. Where there have been "two trials," so-called because one trial has been set aside, this first trial is not the "trial" in the legal sense. Where a new trial is granted requiring a retrial, the action is the same as if it had never been tried. There is but one trial, the proceeding set aside not being the trial. See Benjamin v. Ver Nooy, 168 N.Y. 578, 61 N.E. 971, 972. This term "trial" contemplates the final disposition of the controversy on the facts. Griggs v. Meek, 37 Wyo. 282, 261 P. 126, 129.

The plaintiff, in bringing his action for the conversion of property of fluctuating value, need not specify in his complaint that he is demanding the value at the time of the conversion, or the highest market value, as he is not required to plead the rule of damages. Neither is he precluded from recovering the highest market value up to the time of verdict even though he may have asked at one time for the value of the property at the time of conversion. See Williams v. Gray, 62 Mont. 1, 203 P. 524, 526. Of course, he cannot rely on both rules but must make a choice, but it is the injured party who has the option. That this choice may at times appear to work injustice has been considered by this court from the very first; (see Pickert v. Rugg, 1 N.D. 230, 234, 46 N.W. 446) but, as pointed out in First Nat. Bank v. Red River Valley Nat. Bank, 9 N.D. 319, 323, 83 N.W. 221, "however averse we may be to the rule, it is the rule which governs; and the plaintiff has an absolute right to recover the highest market price, if it so elects, provided only that it has prosecuted its action with reasonable diligence." As pointed out in this case cited, it may be a misnomer to call it "compensation" and that it is largely punishment; but this is the rule which is laid down by the legislature as the measure of damages, and the injured person has the option of choosing the rule for damages.

Without limiting the rule to the narrow meaning of the term "verdict" as the decision of a jury, and considering the term in this case as including the findings of the judge, it is clear that there is but one determinative "verdict" rendered in this case and that was on the second trial. It must be evident that the "verdict" which is the limit for the period of the highest market value is the verdict in the trial which finally decides the case. The statute does not say a verdict, but the verdict, and in this respect the term is analogous to the trial. See Collier v. Gavin, 1 Neb. (Unof.) 712, 95 N.W. 842, 844, for discussion of the trial.

In State ex rel. Broadwater Farms Co. v. Broadwater Elevator Co. 61 Mont. 215, 201 P. 687, 692, it is held that the statutory provision "at the time of verdict" terminated when the case was submitted for decision "where there was no evidence taken after that time." If new evidence was taken so as to justify another verdict, then the verdict which is the limit of measurement of time would be the verdict which finally determined the case. As shown in Earl v. Reid, 32 Neb. 45, 49, 48 N.W. 894, 895, "Where a verdict is set aside, and a new trial granted, the second trial will proceed precisely in the same manner as if no previous trial had been had."

In the case at bar the case was terminated at the trial before Judge Grimson, and therefore the plaintiff was entitled to recover the highest market value from the time of conversion in July 1933 to the date of that trial.

We, therefore, adhere to the decision rendered.

CHRISTIANSON, Ch. J., and NUESSLE and MORRIS, JJ., concur.